Njenga & another v Embu Gaturi Cooperative Society Limited (Tribunal Case 83 of 2007) [2023] KECPT 804 (KLR) (26 October 2023) (Ruling)
Neutral citation:
[2023] KECPT 804 (KLR)
Republic of Kenya
Tribunal Case 83 of 2007
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 26, 2023
Between
Wamae Njenga
1st Claimant
Simon Njogu Munguri
2nd Claimant
and
Embu Gaturi Cooperative Society Limited
Respondent
Ruling
1.By its judgment delivered herein on the 3rd day of September, 2020, the Tribunal awarded to the Claimants the sum of Kshs. 40,000/= each, plus costs and interest at court rates.
2.Pursuant to the said judgment, the Claimants filed at the Tribunal a Bill of Costs dated 28th February, 2022 on the 9th March, 2022.
3.Before the said Bill of Costs could be assessed, the Respondent filed on 17th January, 2023, a Notice of Preliminary Objection dated 12th January, 2023 raising the following Objections:a.That the Tribunal is not clothed with jurisdiction to tax costs as per the Advocates Act and the Advocates (Remuneration) order 2009 Rules .b.That based on the aforesaid reason, the jurisdiction of the Tribunal has been wrongly invoked.c.That in the premises, the Bill of Costs dated 28th February 2022 is an abuse of the process of the Tribunal and the same should be dismissed with costs, to the Respondent parties agreed to canvass notice of preliminary objection by way of written submissions.
4.The Claimant filed their submissions dated 30th June 2023, while the Respondent filed submissions dated 30th May, 2023.
5.We therefore have two matters coming for determination before the Tribunal.
Notice of Preliminary Objection dated 12th January 2023.
6.In their written submissions dated 30th June 2023, the Claimants does not address the issues in the Notice of Preliminary Objection, though they mentioned its existence.
7.Similarly, the Respondent, in its submissions dated 30th May, 2023 does not address its own notice of Preliminary objection.
8.In determination of the Notice of Preliminary Objection, we shall address ourselves to the law, particularly, the Cooperative Tribunal Act and Rules from where the Tribunal derives its jurisdiction and Practice and Procedure Rules.
9.Rule 6 of the Cooperative Tribunal (Practice and Procedure) Rules, 2009 provides that the provisions of the Civil procedure Rules (Cap 21) shall apply in respect of the proceedings of the Tribunal.
10.Rule 7 of the aforesaid rules provides for the powers of the Chairman and Deputy Chairman.
11.Sub rule (2) of the said Rule 7 provides as follows:
12.It is our finding, from the foregoing, that the Tribunal has jurisdiction to tax costs as between parties before it.
13.We therefore find that the notice of Preliminary Objection dated 12th January, 2023 lacks merit ad hereby dismiss the same with no orders as to costs.
Claimant’s Bill of Costs dated 28th February 2022.
14.Having dismissed the Preliminary Objection, we proceed to consider the Claimant’s Bill of Costs. In its judgment delivered on 3rd September, 2020, the Tribunal awarded each Claimant the sum of Kshs. 40,000/= thereby making the total award amount total to Kshs. 80,000/=. The Tribunal also awarded costs of the claim to the Claimants.
15.In determining the Bill of Costs herein, we shall consider the value of the judgment herein, being Kshs. 80,000/=. The claim herein was determined pursuant to a full hearing, we shall apply the higher scale of Schedule II of the Advocates Remuneration Order.
16.The Claimants have their costs as follows:1.Instructions charged fees Kshs. 35,280/=.2.Attendances on various occasions for various reasons by the Claimants and the advocates Kshs. 58,600/=.3.Filing fees Kshs. 1,245/=.4.Service of Bill of Costs Kshs. 1,900/=The total amount charged by the Claimants on the Bill of Costs is Kshs. 93,535/=.
17.We have considered the submissions of both parties herein, and the claim judgment proceeding the d Bill of Costs and are satisfied that the matter is of normal complexity hence we shall tax the Claimants’ Bill of Costs to scale.
18.We have considered all the items charged under the Bill of Costs herein and assess the same as follows:1.Instructions fees assessed on the basis of the judgment sum is assessed at Kshs. 23,520/= .2.Attendances are assessed at Kshs. 20,200/=.3.Disbursements are assessed at Kshs. 3,145/=.The total amount of the costs as assessed is Kshs. 46,865/=.We so order.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26.10.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26.10.2023HON. BEATRICE SAWE MEMBER SIGNED 26.10.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26.10.2023HON. PHILIP GICHUKI MEMBER SIGNED 26.10.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26.10.2023HON. PAUL AOL MEMBER SIGNED 26.10.2023TRIBUNAL CLERK JONAHMS. WACHIRA ADVOCATE FOR THE CLAIMANT.ANYONA ADVOCATE FOR THE RESPONDENT.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26.10.2023